New Supreme Court Case Threatens Legal Protections for Animals
Law & Policy•5 min read
California’s Prop 12 faced industry opposition because it has huge implications for animal welfare. Now that it’s been upheld by the Supreme Court, here’s what’s next.
Words by Jennifer Mishler
Over 60 percent of California voters passed a new law to protect farmed animals in 2018: Prop 12, which bans some types of confinement of farmed animals. Nearly four years later, after a Supreme Court ruling held the law up as constitutional, many are still wondering, when does Prop 12 go into effect? The legislation has faced years of obstacles as industry groups, trade associations and big-box retailers have invested millions in opposition efforts.
Here’s what you need to know about what Prop 12 is, the obstacles it’s faced, when it will officially go into effect, and how the law will be enforced.
Proposition 12 is a law that California voters passed with overwhelming support in 2018 to define the minimum amount of space that farmers must give to cows, pigs and chickens who are held in confinement. The law applies to food products made from these animals and then sold in California, even if the animals were raised and slaughtered outside of the state.
California’s Proposition 2 passed with over 63 percent of the vote in November 2008. The ballot initiative prohibited the sale of foods produced using the confinement of certain animals “in a manner that does not allow them to turn around freely, lie down, stand up, and fully extend their limbs.” This initiative also applied to egg-laying hens, veal calves and gestation sows, but stopped short of specifying minimum amounts of space the animals must be afforded, the way Prop 12 does.
Proposition 12 has elicited a strong response from both proponents and opponents across the nation. Since the landmark legislation was passed in 2018, numerous legal challenges — and, in response, animal advocacy campaigns in support of the law — have ensued.
The primary sponsor of the proposition is The Humane Society of the United States (HSUS). HSUS was joined in supporting the proposition by other groups, including the Animal Legal Defense Fund (ALDF) and Animal Outlook. More supporters are listed on the Prevent Cruelty California campaign website, including animal protection groups, faith leaders, veterinarians, family farmers and elected officials.
The primary opponents are the American Farm Bureau Federation and the National Pork Producers Council.
The meat and poultry processing industry is highly concentrated in its economic power — meaning just a few companies control the chicken, beef and pork sectors. About 40 U.S. pork producers own approximately two-thirds of female pigs kept for breeding. Most pig farms are concentrated in just a couple of states, and the top pork producer in the U.S., Smithfield Foods, has about 530 company-owned and 2,100 contract farms producing about 18 million pigs every year, including 1.2 million sows.
In the hog or pigfarming industry, four meatpackers control nearly 70 percent of the pork market: JBS, Tyson, Smithfield and Hormel.
Production contracts between the companies and farmers dictate how pigs will be raised. The companies own the pigs, while the farmers maintain the land, equipment and other “inputs” like food, water and labor. In exchange, they pay the farmer based on the pigs’ final weight before slaughter. Nearly three-quarters of all U.S. pigs are raised under these contracts.
California’s Prop 12 regulations are set by the state’s Department of Food and Agriculture (DFA) and the Department of Public Health. The California DFA is currently writing the rules that will provide more details on how Prop 12 standards will be implemented. The standards will require farm operators to abide by certain space minimums for confined animals. Business owners and operators will also be required to sell only veal, pork and eggs (liquid or in-the-shell) from animals raised according to the new guidance.
Prop 12 went further than previous laws on the books for California’s farmed animals. A previous measure, Prop 2, protected hens, mother pigs and veal calves by describing the behaviors they should be able to display while in confinement. Prop 12, on the other hand, specifies with precise numbers the minimum amount of space that farmers must allow when enclosing egg-laying hens (including chickens, turkeys, ducks, geese and guinea fowl), pregnant female pigs and baby cows raised for veal. Prop 12 also adds a sales ban on specific meat and egg products that come from animals not raised in the new minimum-sized cages.
Prop 12’s restrictions for the production of eggs and veal have been in place since the law was meant to go into full effect on January 1, 2022. But a legal challenge by the National Pork Producers Council — denied by the Supreme Court on May 11, 2023 — delayed the implementation of its standards for pigs until July 2023.
The regulations set in place by Prop 12 will apply to foods produced both within and outside of the state of California. No products made under confinement conditions more restrictive than what is allowed by Prop 12 will be able to be sold.
In order to ensure that Prop 12’s regulations are adhered to for the tens of millions of animals the legislation impacts, California will need to strictly enforce the law. Animal advocates remain concerned that lax enforcement of bans (such as those on foie gras and fur) indicate that California could be lenient in its enforcement of Prop 12, as well.
Furthermore, meat producers have sometimes used misleading animal welfare claims on food labeling, which is another concern for animal protection groups. Prop 12, while offering a small increase in comfort for farmed animals, still requires a massive change for most farms producing industrially raised animals. If companies are to meet its legal standards, it likely requires them to make changes not only to farms they own in California, but to those manufacturingproducts exported for sale in California, too.
As previously stated, the California Department of Agriculture continues to determine how Prop 12 will be enforced. However, if Prop 12 is adequately enforced, the state will ensure that both products produced in California and those produced beyond its borders are prevented from being sold in the state if they do not meet the new animal welfare requirements.
The California Department of Food and Agriculture will be tasked with implementing Prop 12 by working with producers to monitor compliance, and a new Animal Care division of the agency was formed in the wake of Prop 12’s passing. The food and agriculture agency has indicated that the state attorney general’s office or local prosecutors may take legal action in the case of violations.
For the past decade, meat processors, meat retailers, egg producers and major retail businesses have contested the implementation of animal welfare confinement statutes passed by the people of California, including Proposition 12. The Humane Society of the United States and other animal welfare organizations have intervened as parties on behalf of the state to defend Prop 12 and similar laws.
Proposition 12, passed in 2018 with an eye towards full implementation in 2022, builds on the work of animal welfare advocates who helped pass Proposition 2 and AB 1437, both of which went into effect in 2015. Several lawsuits challenged Prop 2, AB 1437 and Prop 12 in order to delay their implementation.
In 2008, California voters passed Proposition 2, the Prevention of Farm Cruelty Act, which went into effect in 2015. The new law required that farmers give hens, sows and veal calves raised in California the space to stand, lie down, turn around and stretch.
In 2012, William Cramer, representing the interests of egg producers, claimed that these new requirements were too vague to implement. The courts disagreed with him — both the U.S. Court of Appeals, Ninth Circuit in 2015 and the district court preceding it.
The courts held that the law was reasonable in its requirements because “hens have a wing span and a turning radius that can be observed and measured,” which means someone trying to comply with the new law could reasonably be expected to figure out the dimensions for correctly sized hen cages.
This multi-state lawsuit contested a California state law (AB 1437) passed in 2010, which required that eggs produced or sold in the state had to come from hens who could fully spread their wings without touching other hens, or the sides of their enclosure.
The law was a response to egg farmers in California who felt that the state’s recently passed reforms in 2008’s Proposition 2 — to give egg-laying hens enough space to “lie down, stand up, turn around and extend their limbs” — would put them at a disadvantage against egg farmers outside of the state.
Missouri and five other states (Nebraska, Oklahoma, Alabama, Kentucky and Iowa) then claimed in 2014 that AB 1437 violated the Commerce Clause of the U.S. Constitution. Ultimately, more than a dozen states joined the suit. These states lost their suit in the District Court for Eastern California and in the U.S. Court of Appeals for the Ninth Circuit. The Supreme Court declined to hear the case in 2019.
In a prior lawsuit on a similar matter, Missouri’s then-Attorney General estimated that about one-third of Missouri’s eggs sales went to California, makingMissouri the second-largest egg exporter in the United States, after California. Iowa exports another third of the eggs eaten in California, according to Iowa State University’s Center for Agricultural Law and Taxation.
The Supreme Court of the United States issued its decision in May 2023. Filed by the National Pork Producers Council and the American Farm Bureau Federation, the lawsuit claimed that Prop 12 violated the U.S. Constitution’s Commerce Clause. The Court ruled against the plaintiffs and upheld the Ninth Circuit decision in favor of Prop 12.
The North American Meat Institute (NAMI)’s lawsuit challenged Proposition 12, representing the interests of meat processors and retail stores such as Cargill, JBS USA, Smithfield Foods, Wegmans, Chipotle, Target, Whole Foods, Tyson Foods and Walmart. NAMI appealed its case in 2019 in the Ninth Circuit Court of Appeals after losing its initial case in the U.S. Central District Court of California. Both courts found that Proposition 12 did not violate the commerce clause, and denied NAMI’s request for a preliminary injunction. Had the injunction been approved, the plaintiffs would have succeeded in canceling the proposition’s impact on sales of animal products.
Defendants included Xavier Becerra, Karen Ross, Dr. Sonia Angell and Susan Fanelli, who was the Acting Director of the California Department of Public Health in 2019. The 9th Circuit Court affirmed the lower court’s decision on June 5, 2020, and the Supreme Court declined to hear the case in 2021.
This lawsuit was filed by the Iowa Pork Producers Association on November 9, 2021. Like previous challenges, its complaint alleged that California’s legislation violated the Commerce Clause.
On November 16, the defenders filed the case in the U.S. District Courtt for the Eastern District of California, and one month later, sought a preliminary injunction. Then, on December 27, the court agreed to transfer the case to the Central District of California — the same court handling North American Meat Institute v. Becerra.
The Central District court granted a request to dismiss the case, citing that the complaint was filed three years after Prop 12 was passed and that the plaintiffs failed to show that the law violated the Commerce Clause.
The Superior Court for Sacramento County had halted enforcement of Proposition 12 because California’s regulations for pork producers have not yet been finalized. Once the regulations are issued, the new law can be enforced 180 days afterward.
Prop 12 has been celebrated by many advocates as one of the strongest animal welfare laws in the nation, affecting the lives of millions of farmed animals raised within and outside of California. The massive state of California consumes 13 percent of the nation’s pork, mostly in the form of imports.
Industry opponents of the law argue that Prop 12 should not impose restrictions on farmers producing food outside of California in order to sell their products there, and that its standards will be costly for these farmers to implement as well.
Even some advocates of animal rights are not in support of Prop 12. They believe that Prop 12 does not go far enough, offering many exceptions and only slightly more living space for intensively raised animals who will ultimately be slaughtered for human consumption.
Proposition 12 is part of a global movement to use legislation to improve the conditions of factory-farmed animals such as chickens, pigs and cows.
New Zealand, Australia, the European Union and many U.S. states (Arizona, Colorado, Florida, Maine, Michigan, Ohio, Oregon and Rhode Island) have already passed laws banning the use of gestation crates for sows. Many of these governments have also passed laws banning the use of cages for egg-laying hens and veal crates.
In order to reduce the confinement of animals for food, you can support legislative initiatives that ban or restrict confinement, like Prop 12, but you can also make shifts in your diet to reduce or eliminate your consumption of animal-sourced foods.
This piece has been updated. Previous research was supplied by Hemi Kim.
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